SAN FRANCISCO (CN) - A federal judge on Friday seemed likely to advance a lawsuit arising from an outbreak of the rodent-carried hantavirus at Yosemite National Park in 2012.
Several families sued the federal government and the companies that run guest services at the park in 2013 after an outbreak the prior year sickened 10 and caused at least three deaths among vacationers staying in “signature tent cabins” at what was then called Yosemite’s Curry Village.
Hantavirus pulmonary syndrome is a lung disease that can be fatal. Deer mice carry the virus, which humans can contract through contact with their urine, droppings and saliva, by breathing in tiny airborne particles of dust or by being bitten, according to the U.S. Centers for Disease Control and Prevention. Aside from the 2012 outbreak, only two other hantavirus cases have been linked to Yosemite – once in 2000, and once in 2010. Neither case was fatal, and both occurred in the High Sierra region at Tuolumne Meadows.
Defendant Delaware North, which ran the hotel, restaurant and visitor services in Yosemite, filed a cross-claim against the United States, saying that if it is held at fault for the plaintiffs’ injuries, “the U.S. bears all or part of that fault.”
On Friday, U.S. District Judge Maxine Chesney said the case against the government hinges on whether it had a duty to perform regular inspections of what she called the “fancy tent cabins,” or what the lawyers called “STCs.”
The signature tent cabins are advertised on the park’s website as consisting of a wooden floor, frame and door and covered in canvas. They include cot-style beds, linens, propane heating and electricity, and cost about $80 a night. A non-heated cabin starts at $50.
The first signature tent cabins opened to guests in 2009.
Adam Bain with the U.S. Department of Justice said it wasn’t the park service’s job to actively check for mice, as it would have involved lifting the canvas off each tent. The government’s duty, he said, was to make sure the cabins’ doors and windows are sufficiently tight to exclude rodents and insects. He said it was Delaware North’s duty to thoroughly inspect the cabins.
“The best way to not find something is to not look,” argued plaintiffs’ attorney Khaldoun Baghdadi. “Even when the inspection is limited to the exterior and interior of the building the main purpose is to identify structural defects that allow rodents to enter the building.”
Bain countered, “The nesting mice between the cabin’s exterior and drywall interior – that is a place that’s really hidden from the inspector to be able to see that.”
Judge Chesney seemed somewhat unsympathetic to this argument. “But they didn’t just come in and look for snacks and get out,” she said. “They set up housekeeping. Built a little mouse hotel. You can’t launder your duty by sending it off to someone else.”
Turning to Delaware North, the plaintiffs’ lawyers argued that the company acted as the builder of the tents when they added the sheet of canvas to the wood frame, and are thus liable for any defects that allowed the mice to invade the cabins.
“They assumed the duties that come with the designer and manufacturer. They did the work,” said plaintiffs’ attorney Jim Collins. “All their revenues come from these tents. They put themselves in the place of the builder.”
Chesney was skeptical, saying she was inclined to rule in favor of Delaware North on the product liability claim.
“There is no question they knew there were plenty of mice and that the cabins were attracting them, but in terms of fully exposing them to a known high risk of hantavirus they may have known less about it than the government did,” she said.
Chesney also struggled with whether Delaware North knowingly and intentionally concealed the outbreak from vacationers.
At first, she thought the plaintiffs didn’t have a fraudulent concealment case at all, as traditional fraud requires proof that someone relied on a statement made by someone else. The plaintiffs claim Delaware North knew about the mice and the hantavirus risk, but chose not to tell vacationers out of fear that they would flee the camp and tell their friends not to rent the cabins, either.
“I have a lot of trouble with where this fraud claim is,” Chesney said. “Fraud requires some detrimental reliance. First you have to intend that someone is going to rely on it and do something. Here is the idea we won’t tell people about the health hazard so they will rent these tents. Where does this turn into traditional fraud— where there is some kind of encounter and somebody doesn’t tell someone something and that person does something?
“I’m trying to find out what exactly was supposed to be known and what exactly wasn’t told,” she added.
Collins said the company should have updated its policy to warn vacationers about potential health hazards. “They should have told them, ‘the STCs are nicer and more expensive, but we have had reports of mice inside the walls of the signature tents and that would increase the risk of hantavirus,’” Collins said.
“It’s not the strongest fraud case, okay,” Chesney said. “It doesn’t feel like a typical fraud case but it may fit into this one odd category of fraud cases. I’m not sure.”
Chesney is expected to rule on the matter in the next few weeks.
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